The Senate impeachment trial is set to begin the week of February 8. Speaker Pelosi has made her intentions known, and now the former President has answered. Lawyers for Trump, Bruce L. Castor, Jr., and David Schoen, in their 14-page answer, argue mainly that the Senate "lacks jurisdiction over the 45th President because he holds no public office from which he can be removed."
They also argue a number of other points, primarily centering around the misconstrual of protected speech, deprivation of due process, deprivation of free speech, failure to comply with the rules of setting out the articles, and creating the appearance of bias with their design to "ensure that Chief Justice John Roberts would not preside over the proceedings."
Based on statements by members of congress, it looks increasingly unlikely that the impeachment effort will be successful. Only ten House members voted for it. The Constitution requires a two-thirds vote of the Senate to convict, and the penalty for an impeached official upon conviction is removal from office. Trump no longer holds the office of the Presidency; therefore, he cannot be removed. On Tuesday, Tim Kaine(D-VA) said he is “very worried about going through this trial and having the punchline at the end of it, Trump acquitted again.”
Concerning President Trump's right to protected speech, his lawyers argue that he did not "engage in High Crimes and Misdemeanors" with regard to his opinions on election fraud. Nor did he incite violence at the Capitol on Jan. 6. Rather, he was exercising "his First Amendment right under the Constitution to express his belief that the election results were suspect, since with very few exceptions, under the convenient guise of Covid-19 pandemic “safeguards” states election laws and procedures were changed by local politicians or judges without the necessary approvals from state legislatures. Insufficient evidence exists upon which a reasonable jurist could conclude that the 45th President’s statements were accurate or not, and he therefore denies they were false."
Also, they contend that the former President's statement like the one from his speech at The Ellipse on Jan. 6 where he said, “if you don’t fight like hell you’re not going to have a country anymore,” both fails to meet the specific legal standard of a "Seditious Act" with its very specific meaning, and it purposely aims to remove the context of his meaning that day. Counsel denies that the phrase "had anything to do with the action at the Capitol as it was clearly about the need to fight for election security in general, as evidenced by the recording of the speech." Read in its entirety, it is difficult to imagine that President Trump meant that Americans should take up arms that day.
Save America Jan. 6 Speech/AP Photo/Jacquelyn Martin
The response to the Jan. 2 conversation with the Georgia Secretary of State Brad Raffensperger when he asked him to "find votes." Again, in context, "President Trump was expressing his opinion that if the evidence was carefully examined one would “find that you have many that aren’t even signed and you have many that are forgeries.”
It is also denied that he "betrayed his trust as President, to the manifest injury of the people of the United States," but rather he was duly elected in 2016 and was "at all times doing what he thought was in the best interests of the American people."
Perhaps the most obfuscating part of the impeachment allegations has to do with how the articles themselves were laid out, almost as if to make it difficult for a Senator to clearly exercise his or her vote at the trial.
"By charging multiple alleged wrongs in one article, the House of Representatives has made it impossible to guarantee compliance with the Constitutional mandate in Article 1, Sec. 3, Cl. 6 that permits a conviction only by at least two-thirds of the members." Rule XXIII of the Rules of Procedure and Practice in the Senate When Sitting on Impeachment Trials provides that each article must be separate and fully realized in their division. Instead, the articles are "interwoven," alleging "multiple wrongs" within the same article. Therefore, and importantly, "it would be impossible to know if two-thirds of the members agreed on the entire article, or just on parts, as the basis for vote to convict."
Finally, the "House chose to allow jurisdiction to lapse on the Article of Impeachment," therefore excluding Justice Roberts from presiding—as is customary and Constitutional—for good reason. It denies the 45th President due process. The lawyers argue that the delay allowed the House to substitute "a partisan Senator (Sen. Patrick Leahy D-Vt) who will purportedly also act as a juror while ruling on certain issues."
Senator Leahy(D-Vt)/J. Scott Applewhite/AP
The closing statement is short and to the point:
"WHEREFORE, Donald John Trump, 45th President of the United States respectfully requests the Honorable Members of the Senate of the United States dismiss Article I: Incitement of Insurrection against him as moot, and thus in violation of the Constitution, because the Senate lacks jurisdiction to remove from office a man who does not hold office. In the alternative, the 45th President respectfully requests the Senate acquit him on the merits of the allegations raised in the article of impeachment."
Another round of briefs will be submitted next Monday by the House impeachment managers and Trump's team. The House managers' reply will be the response to Trump's answer yesterday and the Trump team's pre-trial brief. The impeachment trial will then start on Tuesday, Feb. 9.